The Metaphor of Proportionality

Date01 March 2016
AuthorNicola Lacey
Publication Date01 March 2016
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00739.x
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 1, MARCH 2016
ISSN: 0263-323X, pp. 27±44
The Metaphor of Proportionality
Nicola Lacey*
The idea of proportionality has figured prominently in moral, legal,
and political theory. It has been central to the articulation of an ideal
of limited punishment in modern legal orders, and to judicial and
academic efforts to lay down standards for legitimate state conduct in
a range of areas. Setting out from a broad view of the role of metaphor,
I map histories of proportionality in different spheres (law, politics,
culture), spaces (nation states and regions), and legal areas (criminal,
public, international, and private law), before moving on to consider
the conditions under which abstract ideas like proportionality assume
a salience within particular spheres of legal or political discourse.
Focusing on the case of appeals to proportionality in criminal justice, I
develop an argument about the conditions under which they enjoy
some capacity to coordinate expectations or beliefs, and consider how
far this thesis might be generalizable to other fields.
INTRODUCTION
The idea of proportionality has figured prominently in modern moral, legal,
and political theory. It has been central to the articulation of an ideal of
limited punishment in modern legal orders. And, particularly in recent years,
it has assumed a central place in the judicial and academic efforts to lay
down standards for legitimate state conduct, and for judicial oversight of the
exercise of power in a range of areas within human rights, administrative,
public, international, and private law. But what role is this pervasive meta-
phor playing in law and legal discourse, and what explains the extraordinary
recent upswing in its fortunes?
27
*Law Department, London School of Economics, Houghton Street, London
WC2A 2AE, England
n.m.lacey@lse.ac.uk
I am grateful to Hanna Pickard, Thomas Poole, David Gurnham, and two JLS referees for
helpful comments on a previous draft of this article, and to Victoria McGeer and Philip
Pettit for discussion of its argument. I would also like to thank colleagues at an LSE Law
Department research seminar for helpful feedback.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
In this article, I aim to tackle these questions. Setting out from a broad
view of the role of metaphor in legal and other social discourses, I map out
histories of proportionality in different spheres (law, politics, culture), spaces
(nation states and regions), and legal areas (criminal, public and private law),
before moving on to consider the conditions under which abstract ideas like
proportionality assume a salience within particular spheres of legal or
political discourse. Focusing on the case of appeals to proportionality in
criminal justice, I then go on to develop an argument about the conditions
under which they enjoy some capacity to coordinate expectations or beliefs,
and consider how far this thesis might be generalizable to other fields. In
doing so, I clarify the relationship between my argument in this article and
that in a recent paper co-authored with Hanna Pickard, in which we argued
that scholars of criminal justice have been apt to be misled by the apparently
determinate power of an idea whose force in fact ultimately depends on a
surrounding infrastructure of attitudes and institutions.
1
THREE PRELIMINARY QUESTIONS
Before embarking on this project, three preliminary matters must be
addressed. First, we need to resolve the question of how we should under-
stand the idea of metaphor in and beyond law, and, in particular, the degree
to which metaphor is distinct within language. Second, we need to give an
account of why the appeal to metaphor in law and legal discourse might be
thought to be of distinctive importance to law and society scholarship ± an
issue which immediately invites reflection on the roles or functions of
metaphor within the production of legal meaning and the exercise of legal
power. And third, we need some account of the history, contours, and role of
proportionality, understood as one of the foundational metaphors of modern
law. I shall take each of these questions in turn.
Starting, then, with our first question, we can set out from the standard
dictionary definition of metaphor as a figure of speech in which one thing
stands in for or represents ± etymologically, carries over, transfers, carries
across ± something else to which it does not directly refer. As such, metaphor
has much in common with similes, analogies, symbols such as images,
parables.
2
In each case, meaning is conveyed by the drawing of a connection
28
1 N. Lacey and H. Pickard, `The Chimera of Proportionality: Institutionalising Limits
on Punishment in Contemporary Social and Political Systems' (2015) 78 Modern Law
Rev. 216.
2 Hence the role of metaphor in lending authority and persuasiveness to law is com-
parable to that of images: C. Douzinas and L. Nead (eds.), Law and the Image: The
Authority of Art and the Aesthetics of Law (1999); A. Gearey, Law and Aesthetics
(2001); L. Mulcahy, Legal Architecture: Justice, due process and the place of law
(2011).
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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